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The concept of 'activist judges'

 
 
Reply Thu 14 Oct, 2004 08:40 am
http://www.courtinginfluence.net/

I thought this site was interesting. Especially since Bush is always complaining about 'judicial activism' and whatnot.
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Type: Discussion • Score: 2 • Views: 3,958 • Replies: 76
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Foxfyre
 
  1  
Reply Thu 14 Oct, 2004 08:48 am
The issue isn't the judges background as an attorney but the judge's integrity in interpreting the letter and intent of the law and the judge's ability to separate his personal beliefs/convictions/wishes from the letter and intent of the law.

For instance, Kerry has already said he won't appoint a judge who doesn't support Roe v Wade. That is just plain wrong. It doesn't matter what the judge's personal opinions are re abortion. It only matters that the judge will uphold the letter and intent of the law as it is written.

A New Mexico judge, supportive of gay marriage, recently ruled that gays could legally marry. This created a stampede to City Hall for marriage licenses and a rash of gay marriages in direct conflict to state law. The ruling was overturned by a higher court and lawmakers will deal with the matter at some point. But this was a case of a judge 'making law' based on his own ideology rather than interpreting the letter and intent of the law as it was written at the time.

In short a judge cannot properly make rulings according to the way he thinks things ought to be, but must properly make rulings according to the way things are regarding the law of the land.
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panzade
 
  1  
Reply Thu 14 Oct, 2004 08:55 am
I'm bewildered Foxy. That means that decisions like Brown vs Board wouldn't happen because it would be contrary to the law of the land.
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Lash
 
  1  
Reply Thu 14 Oct, 2004 09:00 am
Yeah. That is a problem with my preference toward constructionism v activism.

At one point, the Constitution defines blacks as 3/5 of a person. Elsewhere, it states that we are all equal. Someone had to break out on that issue.
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Foxfyre
 
  1  
Reply Thu 14 Oct, 2004 09:04 am
Brown vs Board was based on a constitutional concept and judged that the 'law of the land' was in conflict with the letter and intent of the Constitution of the United States. Roe v Wade was the same kind of deal. All judges appointed by presidents have to be prepared to make these kinds of rulings when the state or local law conflicts with the Constitution. It's all the law of the land, but the Constiution should prevail when the law contradicts itself.

Also it is like the Supreme Court currently arguing the matter of the Ten Commandments being legal in government buildings. There is no separation of church and state in the constitution, but that was decided by some court at some time. Most local laws don't address this issue and judges in lower courts have ruled various ways on the issue. More often than not when the ACLU or others have filed suit, the lower courts have declared a religious object in a government building to violate the earlier ruling re separation of church and state. The rulings have not gone universally that way, however.

So, the Supremes will now decide the matter once and for all. In my view, they should decide that a religious object in a government building in no way establishes religion when nobody is required to pay homage to it, believe in it, or respect it. So I hope they rule that way. I believe if they rule any other way, they are making law rather than interpreting the letter and intent of the Constitution.
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Debra Law
 
  1  
Reply Thu 14 Oct, 2004 09:14 am
law
Foxfyre wrote:
For instance, Kerry has already said he won't appoint a judge who doesn't support Roe v Wade. That is just plain wrong. It doesn't matter what the judge's personal opinions are re abortion. It only matters that the judge will uphold the letter and intent of the law as it is written. . . .

In short a judge cannot properly make rulings according to the way he thinks things ought to be, but must properly make rulings according to the way things are regarding the law of the land.


Roe v. Wade is the law of the land. This U.S. Supreme Court decision is based on the individual right to privacy as protected by the United States Constitution (the Supreme Law of the Land). Every individual has a right to privacy and is protected against unreasonable government intrusion into private matters.

It is not wrong for Kerry to support the Constitution and to refuse to appoint anyone to the bench who would put his/her anti-abortion beliefs ahead of the Supreme Law of the Land as set forth in Roe v. Wade. You have the concept right, but your application of the concept is wrong.
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ebrown p
 
  1  
Reply Thu 14 Oct, 2004 10:05 am
I am interested by Bush's invocation of the Dred Scott case.

In this case Bush is on the side of judicial activism. Slavery was the law of the land, and opinion of the court is clearly based on a literal interpretation of the Constitution.

Many of us feel that the Dred Scott decision was a bad one because it ignored the clear moral issues and the ideals expressed in the Constitution.

In Roe v. Wade it is arguable that the justices did choose an interpretation of the Constitution that was arguably not what the framers literally intended.

In Dred Scott, the justices held to a literal intepretation in a time when slavery was legal.

It looks like Bush is trying to have it both ways. He wants a strict interpretation in Roe v. Wade, but would have preferred a more "activist" decision in Dredd Scott.

http://usinfo.state.gov/usa/infousa/facts/democrac/21.htm
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fishin
 
  1  
Reply Thu 14 Oct, 2004 03:26 pm
Re: law
Debra_Law wrote:
Every individual has a right to privacy and is protected against unreasonable government intrusion into private matters.


There are two big fat holes in that statement. The first is is in determining what is or isn't "unreasonable". The second is that once you involve a 2nd person in a matter it is no longer "private" unless some lower level law says it is (the Constitution itself is silent on the issue). In Roe v. Wade the USSC made the determination that the right of privacy should be extended to the particulars of aborition - that is what people are refferring to as the judicial activism in their determination.
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ebrown p
 
  1  
Reply Thu 14 Oct, 2004 03:35 pm
Fishin'

1) You say that involving a 2nd person takes away "privacy". I question this statement. I have an expectation of privacy in my relationship with my wife and my doctor and my lawyer and my priest. You gave "lower level law" as exceptions. I tend to think as privacy in these cases as pretty fundamental-- more than coincidences of "lower law".

2) Isn't it the role of the Supreme Court to determine what is or isn't unreasonable?

The Constitution certainly offers protection against unreasonable government intrusion and set up the SC in a good position to afford this protection.
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Foxfyre
 
  1  
Reply Thu 14 Oct, 2004 03:47 pm
I still believe that it does not matter what the judge's personal preferences, beliefs, passions are. All that matters is that s/he interpret the letter and intent of the law. The only litmus test should be personal integrity, adequate qualifications and experience, and a pledge to uphold and defend the letter and intent of the Constitution of the United States.

Using that criteria, a staunchly prolife judge would defend Roe v Wade until overturned by the Supreme Court, and such a person would only vote to overturn Roe v Wade if somebody can make a better and more convicing argument than was presented in the original case. If the high court is a court of integrity, the only way Roe v Wade to be overturned is for Congress to determine that a life within the womb is indeed a human life subject to protection by the state.

Even if that happened and Roe v Wade was overturned--unlikely in our lifetime I think-- I cannot imagine you could find a majority of the court who would not still rule that the life and health of the mother is at least equal with that of the unborn child when it comes to the issue of abortion.

Meanwhile, however, numerous judges have overstepped the exquisite language of Roe v Wade and have ordered legal abortion policies that far exceed anything envisioned by the 1973 Court.

Privacy laws, parental notification, etc. are all matters that require a cool judicial head and strict application of the letter and INTENT of existing law. A dedicated prolife or prochoice judge could be equally judicious and competent to decide such matters.

Ditto for any of dozens of hot button issues we could name here.
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fishin
 
  1  
Reply Thu 14 Oct, 2004 04:04 pm
ebrown_p wrote:
1) You say that involving a 2nd person takes away "privacy". I question this statement. I have an expectation of privacy in my relationship with my wife and my doctor and my lawyer and my priest. You gave "lower level law" as exceptions. I tend to think as privacy in these cases as pretty fundamental-- more than coincidences of "lower law".


You may have an expectation of privacy but what is it based on? There is no doctor/patient or lawyer/client priviledge mentioned in the Constitution. They are created in lower level laws because there was a fear that people wouldn't go see a doctor and get treatment for things like syphillis without fear of being locked up and to get people to discuss their cases honestly with their lawyers in the interest of justice. You rightfully expect privacy because we've been taught that that's what the law provides - and it does.

It isn't provided for in the Constitution though and they aren't absolute. If you and your wife bring you injured child to the doctor and the doctor thinks you've abused the kid you can bet they'll be reporting it to the government. If the doctor/patient priviledge were in the Constitution doctors would be getting sued daily for reporting child abusers. The states can force doctors to report abuse because they created the doctor/patient priviledge so they also have the authority to create the exemptions to those laws.

Quote:
2) Isn't it the role of the Supreme Court to determine what is or isn't unreasonable?


Hrrm.. Not so easy to answer but.. To some extent, yes, it is. The context is supposed to be that our rights are absolute unless there is a compelling government interest that over-rides our individual rights. The Courts certianly have to decide if the reasons the government gives justifiying their actions are reasonable or not. In Roe v. Wade the Court extended the right of privacy to cover abortions and then ruled that the government's interest was unreasonable. That extension of the right of privacy is what I question. Without that extension the ruling falls apart.

Quote:
The Constitution certainly offers protection against unreasonable government intrusion and set up the SC in a good position to afford this protection.


Certainly. But we've also created a web of laws that work against this particular issue being an unreasonable intrusion. If "it takes a village" and the government has a valid interest in providing women pre-natal care, medication, counseling, etc.. to ensure that the child is born as healthy as possible then why is intruding to ensure the child is born at all unreasonable? (I'm not saying the court should have ruled otherwise - just pointing out the conflicts/confusion in the ruling..)
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mesquite
 
  1  
Reply Thu 14 Oct, 2004 05:05 pm
Foxfyre wrote:
For instance, Kerry has already said he won't appoint a judge who doesn't support Roe v Wade. That is just plain wrong. It doesn't matter what the judge's personal opinions are re abortion. It only matters that the judge will uphold the letter and intent of the law as it is written.

George W Bush says he does not have a litmus test for judges, yet he is on record as saying
Quote:
Pres. GEORGE W. BUSH: We need commonsense judges who understand that our rights were derived from God. And those are the kind of judges I intend to put on the bench.

Transcript
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ebrown p
 
  1  
Reply Thu 14 Oct, 2004 06:18 pm
Quote:

You may have an expectation of privacy but what is it based on? There is no doctor/patient or lawyer/client priviledge mentioned in the Constitution.


Do you also disagree with the Griswold v. Connecticut ruling (in 1965 with overruled a CT law banning counseling for contraception)?

I understand this was the first time the Supremes determined a right to privacy was implied from several Amendments.

I sure like to believe that they were right in this case.
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ebrown p
 
  1  
Reply Thu 14 Oct, 2004 06:25 pm
Quote:

Certainly. But we've also created a web of laws that work against this particular issue being an unreasonable intrusion. If "it takes a village" and the government has a valid interest in providing women pre-natal care, medication, counseling, etc.. to ensure that the child is born as healthy as possible then why is intruding to ensure the child is born at all unreasonable?


I don't think there is a problem here.

There are many times that we, as a society, must draw a line between personal rights, and government interest. The Supreme court often draws this line appropriately.

There is no contradiction in the SC determining that the government has a compelling interest to protect the life of born children while it doesn't in ensuring they are born. This is just an example of the Judicial branch drawing a line.

They have drawn a similar line (with which I think we will both agree) in saying that the government can't stop adults from viewing adult pornography, yet it does have a compelling interest to prevent anyone from viewing child pornography.

The SC can decide between these cases because in the second case it determines that one need (protecting children) overrides the applicable first amendment rights.
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Foxfyre
 
  1  
Reply Thu 14 Oct, 2004 06:47 pm
Mesquite (on the President having a litmus test for judges) quote:
Quote:
Pres. GEORGE W. BUSH: We need commonsense judges who understand that our rights were derived from God. And those are the kind of judges I intend to put on the bench.


He has actually said that a number of times, most recently in the third debate. And, he refers to this phrase from the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--

There isn't a quarrel with that I think.
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fishin
 
  1  
Reply Thu 14 Oct, 2004 07:36 pm
I have no problem with Griswold.

ebrown_p wrote:

I don't think there is a problem here.

There are many times that we, as a society, must draw a line between personal rights, and government interest. The Supreme court often draws this line appropriately.

There is no contradiction in the SC determining that the government has a compelling interest to protect the life of born children while it doesn't in ensuring they are born. This is just an example of the Judicial branch drawing a line.

<snip>

The SC can decide between these cases because in the second case it determines that one need (protecting children) overrides the applicable first amendment rights.


You believe that the state has a more compelling interest in seeing that pregnent woman eats properly and gets vitamins than they do in ensuring that the child is born? What is the states interest in nutritional counseling and providing vitamins? Isn't it to help the fetus (not born children here - a fetus in both cases) to develop and be born healthy? How can there be no contradiction here?

On one hand the state has a compelling interest to see that the child is born healthy (to the extent that the state can and has incarcerated women and forced them to undergo medical care) and on the other they have no interest in seeing that the child is born at all? Both are direct incursions in a woman's "right to privacy" in her own medical affairs.

IMO, either the state has an interest or it doesn't. If the USSC rules that the state has no interest so be it. Get the state out of the business entirely.
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ebrown p
 
  1  
Reply Thu 14 Oct, 2004 08:11 pm
There is no logical inconsistancy.

You need to define what the compelling interest is...

My hypothetical shot at a reasonable interest of the state:

"The state has a compelling interest in preventing children being born who are severly damaged by the actions or inactions of its parents."

There is no contradiction between these two different concerns. One is the question about whether it is right to terminate a pregnancy before a baby is afforded the rights of personhood.

The other is to prevent suffering of a baby after birth which everyone agrees is a person. The fact that the baby is a fetus when the actions are taken is irrelevent. The result of the action is that a live, born child will suffer.

The interest in the second case is to prevent cruelty. A child who must enter life severly impaired is a tragedy. Many people who support a womans right to an abortion would agree that this should be prevented. Different issues, different interests.

One could argue that abortion is cruelty and that an unborn fetus should have the same protection. This is the core of the pro-life argument.

But these are different issues. The positions you have enumerated do not contain any inherent contradiction for people who make the distinction between a born baby and a unborn fetus.
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fishin
 
  1  
Reply Thu 14 Oct, 2004 08:33 pm
The contradictions have nothing at all to do with the fetus/child. The contradictions are in the state getting involved in a woman's pregnancy. Either her pregnancy (and medical treatment as a result of..) is a private issue between her and her medical advisors or it isn't.

Quote:
"The state has a compelling interest in preventing children being born who are severly damaged by the actions or inactions of its parents."


I don't think that's where you want to go. By your wording if a fetus is determined to have congential birth defects the state has a compelling interest in terminating that pregnancy (i.e. forced abortion). Surprised
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joefromchicago
 
  1  
Reply Thu 14 Oct, 2004 08:42 pm
Foxfyre wrote:
If the high court is a court of integrity, the only way Roe v Wade to be overturned is for Congress to determine that a life within the womb is indeed a human life subject to protection by the state.

Congress cannot overturn Roe v. Wade, since that decision found that the right to an abortion was a constitutionally protected right. Only a constitutional amendment (or a reversal of Roe by the Supreme Court) could change that.

Foxfyre wrote:
Meanwhile, however, numerous judges have overstepped the exquisite language of Roe v Wade and have ordered legal abortion policies that far exceed anything envisioned by the 1973 Court.

Numerous? Name three abortion policies that "far exceed anything envisioned by the 1973 court."
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ebrown p
 
  1  
Reply Thu 14 Oct, 2004 09:15 pm
No fishin,

I think I am on solid logical ground on both counts.

The Supreme Court has said the state does not have a compelling interest to prevent a woman from terminating a pregnancy.

I contend (I don't know if there is SC precedent) that the state does have a compelling interest to prevent parents from acting in such a way that the baby is brought to term damaged.

Notice that in my skillfully worded hypothetical you quote, I include the phrase "damaged by the actions or inactions of its parents".

There is a very big difference in saying "parents should not act in a way that damages a baby they are bringing to term" and saying "parents should not bring a baby with a defect to term".

These are two separate issues. You are trying to make an equivalency that simply doesn't exist.
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